Filed 7/26/19 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

JANICE DICKINSON

,

Plaintiff and Respondent

,

v.

W ILLIAM H. COSBY , J R

. ,

Defendant and Appellant

. B2 91701

(Los Angeles County Super. Ct. No. B C580909 )

APPEAL from a n order of the Superior Court of Los Angeles County. Randolph M. Hammock , Judge. Affirmed

. The Bloom Firm, Lisa Bloom, Franklin L. Ferguson, Jr.,
and Alan Goldstein for Plaintiff and Respondent. Greenberg Gross , Alan A. Greenberg, Wayne R. Gross, and Sarah Kelly

- Kilgore for Defendant and Appellant

.

_____________________________2 In 2014, plaintiff Janice Dickinson publicly alleged that
defendant William Cosby drug ged an d rap ed her in 1982. Cosby responded by issuing a demand letter and several press release s through his attorney, which expressed or implied that Dickinson was lying. Dickinson filed a complaint against Cosby for defamation and related causes of action, w hich Cosby moved to strike under Code of Civil Procedure section 425.16 (the anti

SLAPP statute)

. 1 The trial court granted Cosby’s motion in part,
which we subsequently reversed in Dickinson v. Cosby (2017)
17 Cal.App.5th 655 ( Dickinson I )

. We concluded that none of Dickinson’s claims were barred by the anti

- SLAPP statute. On remand, Cosby filed a second anti

- SLAPP motion seeking to strike claims newly asserted in Dickinson ’s first amended complaint . The t rial court granted the motion in substantial p art, but refused to strike Dickinson’s claims premised on two allegedly defamatory statements appearing in press releases issued by Cosby’s attorney

. Cosby contends the trial court erred in declining to grant
his motion in full . He argues that Dickinson cannot show he is directly or vicariously liable for his attorney’s statements. He also argues the allegedly defamatory statements were his attorney’s nonactionable opinion s and did not refer , directly or indirectly, to Dickinson. We disagree and affirm

. FACTUAL AND PROCEDURAL BACKGROUND 2 During a nationally televised Entertainment Tonight

1 All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

2 We take some of the background facts from our prior opinion in this case, Dickinson I , supra , 17 Cal.App.5th 655.3

interview that aired on November 18, 2014, Dickinson, a
successful model and television personality , accused Cosby

, a successful comedian and actor, of drugging and raping her in
1982. After the interview went public, Cosby’s attorney, Martin Singer, sent a demand letter to the executive producer of Good Morning America , with similar letters to other media outlets. The body of the letter states, among other things, “We are writing regarding the planned Good Morning America segment interviewing Janice Dickinson regarding the false and outlandish claims she made about Mr. Cosby in an Entertainment Tonight interview, asserting that he raped her in 1982 (the ‘Story’). T hat Story is fabricated and is an outrageous defamatory lie.” The next day, November 19, 2014, Singer issued a press release, with the heading,

“ STATEMENT OF MARTIN D. SINGER
ATTORNEY FOR BILL COSBY ” The body of the press release asserts, among other t hings, “Janice Dickinson’s story accusing Bill Cosby of rape is a lie

, ” and “Documentary proof and Ms. Dickinson’s own words show that her new story about something she now claims happened back in
1982 is a fabricated lie.”
Around th is time, several oth er women, including Linda Traitz, also accused Cosby of sexual misconduct . In response to Traitz’s allegations, on November 20, 2014, Singer issued a press release, which was headed,

“ STATEMENT BY MARTIN D. SINGER
ATTORNEY FOR BILL COSBY
REGARDING LINDA JOY TRAITZ ” The statement reads, in its entirety, as follows:4

“Ms. Traitz is the latest example of people coming out of the woodwork with fabricated or unsubstantiated stories about my
client.

“ Linda Joy Traitz is making ridiculous claims and suddenly

s eems to have a lot to say about a fleeting incident she says happened with my client more than 40 years ago, but she hasn’t
mentioned either her 3 1/2 year incarceration or her extensive criminal record with charges spanning from the 1980’s through
2008.

“ For the first time, she is claiming that in approximately 1970, my client supposedly drove her to the beach and had a briefcase filled with drugs and offered her pills to relax, which she says she turned down and demanded to be taken home after Mr. Cosby

c ame on to her. There was no briefcase of drugs, and this is an
absurd fabrication.

“ Ms. Traitz’s long criminal record for numerous offenses including charges for criminal fraud, possession of Oxycodone, cocaine possession, marijuana possession, and posses sion of drug paraphernalia, speaks for itself.

“ As the old saying goes, ‘consider the source.’ ” On November 21, 2014, Singer issued a third press release, which was headed,

“ STATEMENT BY MARTIN D. SINGER
ATTORNEY FOR BILL COSBY ” The statement reads, i n its entirety, as follows: “The new, never

- before

- heard claims from women who have come forward in the past two weeks with unsubstantiated, fantastical stories about things they say occurred 30, 40, or even 50 years ago have escalated far past the point of absurdity.

“ These brand new claims about alleged decades

- old events are5

becoming increasingly ridiculous, and it is completely illogical that so many people would have said nothing, done nothing, and made no reports to law enforcement or asserted civi l claims if they thought they had been assaulted over a span of so many

years.

“ Lawsuits are filed against people in the public eye every day. There has never been a shortage of lawyers willing to represent people with claims against rich, powerful men, so it makes no sense that not one of these new women who just came forward for the first time now ever asserted a legal claim back at the time they allege they had been sexually assaulted.

“ This situation is an unprecedented example of the media’s
breakne ck rush to run stories without any corroboration or adherence to traditional journalistic standards. Over and over again, we have refuted these new unsubstantiated stories with documentary evidence, only to have a new uncorroborated story crop up out of t he woodwork. When will it end?” Demands for Retraction On February 2, 2015, Dickinson’s counsel, Lisa Bloom, sent several Cosby attorneys, including Singer, a letter seeking
retraction of both the November 18 demand letter and November 19 press release. Bloom argued that Singer’s statements on behalf of Cosby had defamed Dickinson and harmed her reputation, and she demanded Cosby “immediately publicly correct the record to restore [Dickinson’s] reputation.” On December 24, 2015, Bloom sent additional le tters to Cosby’s attorneys, as well as Singer’s attorney, demanding
retraction of the November 20 and 21 press releases. Neither Cosby nor Singer retracted the statements.6 Dickinson’s Original Complaint On May 20, 2015, Dickinson filed a complaint aga inst Cosby for defamation and related causes of action

. 3 Her complaint alleged that Cosby had drugged and raped her, which she disclosed publicly in 2014. “In retaliation, Cosby, through an attorney, publicly branded her a liar and called her rape
disclo sure a lie with the intent and effect of revictimizing her and destroying the professional reputation she’s spent decades building.” Dickinson’s complaint alleged that Singer’s November 18 demand letter and November 19 press release were defamatory.
She also alleged that Cosby “issued” and “published” both statements, through his attorney, which were republished by thousands of media entities worldwide as Cosby “foresaw and
intended.” Dickinson pleaded that Cosby’s refusal to retract the
statements afte r having been provided with evidence confirming
that her claims were not fabricated “constitutes actual malice.” She also argued that failure to retract “constitutes [Cosby’s] acceptance, endorsement and ratification” of Singer’s statements.
Dickinson di d not assert any claims based on the November 20 and 21 press releases.

3 In addition to defamation, t he original complaint and operative first amended complaint stated causes o f action for false light and intentional infliction of emotional distress. The trial court ultimately struck Dickinson’s intentional infliction of emotional distress claim and sustained a demurrer to her false light claim. Dickinson does not challenge th ose orders on appeal, so we need not discuss the causes of action further.7 Cosby’s First Anti

- SLAPP Motion On June 22, 2015, Cosby filed an anti

- SLAPP motion seeking to strike Dickinson’s entire complaint. Among other things, Cosby argued that Dickinso n could not prevail on her
defamation claims because the allegedly defamatory statements

were protected by the litigation privilege and were nonactionable opinion s

. Cosby also put forth a series of arguments based on the fact
that the statements had been made by Singer, rather than Cosby himself. Cosby argued that he could not be held liable for Singer’s conduct without evidence that he furnished or approved the statements, and a failure to retract is not sufficient. He further argued that since Dickins on is a public figure, she could only prevail on her defamation cause of action if she established actual malice. He claimed that Singer had not acted with actual malice; and that, even if he had, Singer’s malice could not be imputed to him as Singer’s pr incipal via respondeat superior. As Cosby’s anti

- SLAPP motion had put Singer’s malice into question, Dickinson moved to lift th e automatic discovery stay ( § 425.16, subd. (g)) to depose Cosby and Singer on the issue. After considerable litigation, the tr ial court indicated that, prior to allowing such discovery, it would first determine whether Dickinson had a reasonable probability of establishing the
elements of her defamation action other than actual malice. On March 8, 2016, in an apparent bid to e ntirely remove the malice issue from consideration, Cosby filed a supplemental brief in the trial court stating he was no longer “pursuing on this Special Motion to Strike the arguments advanced in the opening brief regarding agency and actual malice.”8 Dickinson’s First Amended Complaint
W hile Cosby’s original anti

- SLAPP motion was pending, Dickinson filed a first amended complaint (FAC), which added Singer as a defendant. In addition, the FAC newly alleged that Cosby is liable for defamatory statemen ts contained in the
November 20 and 21 press releases. It also added explicit allegations that Cosby is both directly and vicariously liable for publishing the demand letter and press releases. The trial court struck the FAC on procedural grounds.
Or der and Appeal o n Cosby’s First Anti

- SLAPP
Motion
The trial court in part granted Cosby’s original anti

- SLAPP motion. It found the November 18 demand letter was subject to the litigation privilege, which defeated all of Dickinson’s claims
based on the le tter. However, t he court determined Dickinson showed a probability of prevailing on her claims premised on the November 19 press release. Cosby and Dickinson filed cross appeals to the court’s order, which we resolved in Dickinson I , supra, 17 Cal.App. 5th 655. On appeal, Cosby briefed the issues of malice and agency on the merits. We declined to address the arguments, however, given he had withdrawn them before the trial court. ( Id . at

p. 675.) We noted that Cosby did not argue that his anti

- SLAPP

m otion should be reconsidered after Dickinson was permitted to conduct limited discovery. ( Id

. at p. 673, fn. 6.)
As to the rem aining issues, we concluded Dickinson made a sufficient showing of probability of success of prevailing on the
merits of all her defamation claims, and the trial court erred in finding the litigation privilege defeated her claims related to the November 18 demand letter. ( Dickinson I

, supra , 17 Cal.App.5th9

at p p . 681, 685.) We also concluded the trial court erred in striking the F AC. ( Id . at p. 676.) As a result, the FAC became operative when this court issued a remittitur. Cosby’s Second Anti

- SLAPP Motion On May 15, 2018, Cosby filed a new anti

- SLAPP motion seeking to strike the FAC. With respect to the first prong of the
anti

- SLAPP procedure, Cosby argued the demand letter and press releases were protected speech in connection with a public
issue. As to the second prong

— whether Dickinson can demonstrate a probability of prevailing on her claims

— Cosby argued that Dickinson could not establish he was directly or vicariously liable for any of Singer’s statements

, because the requisite evidence to establish such liability, if it exists, is protected by the attorney

- client privilege. Cosby further argued Dickinson could not pr evail on her claims premised on the November 20 and 21 press releases because they did not concern her and were nonactionable statements of opinion. Singer’s Anti

- SLAPP Motion The same day Cosby filed his second anti

- SLAPP motion, Singer filed his own anti

- SLAPP motion. Singer asserted, among other things, that Dickinson could not show a probability of prevailing on her claims because she could not demonstrate that
he acted with actual malice. Singer filed a declaration in support of his motion in w hich he described his investigation of Dickinson’s allegations and the basis for the various statements in the demand letter and press releases. Singer explained that he personally believed Dickinson had fabricated her allegations about Cosby based on his review of her autobiography, his Internet research

, and his personal experiences dealing with her on a prior case.10 Singer further explained that, on “November 18, 2014

— before issuing a statement or responding to any inquiries from
the media about Ms. Di ckinson’s allegations to Entertainment Tonight

— I discussed her allegations to Entertainment Tonight directly with Mr. Cosby and with his transactional attorney, Mr. Schmitt. Because Mr. Cosby has declined to waive the attorney

client privilege, I believe that I am prevented by law from disclosing the substance of those conversations with Messrs. Cosby and Schmitt.” Singer also said he had “been practicing law for more than 40 years. It is my general practice to ensure that any correspondence or press st atement that I issue on behalf of a client is approved by the client before it is transmitted to the intended recipient or recipients, which includes confirming with the client the veracity of the correspondence’s or statement’s substance.” Singer did not indicate whether he deviated from this general practice with regards to the demand letter and press
releases. Dickinson’s Opposition to Cosby’s Second Anti

- SLAPP
Motion In opposition to Cosby’s motion, Dickinson focused on showing a probability of prev ailing on the merits of her claims.
She a sserted that Cosby is vicariously liable for Singer’s actions, whom she could prove acted with malice. Alternatively, she asserted Cosby authorized and ratified Singer’s statements accusing her of lying about Cosb y raping her, despite knowing the allegations were true. Dickinson further argued the
November 20 and 21 press releases referred to her and contained multiple, provably false factual assertions that caused her injury.11 In support of her opposition, Dick inson submitted her own declaration in which she asserted Cosby drugged and raped her in 1982. According to Dickinson, sometime that same year, she told a friend what Cosby had done. She also privately disclosed the incident to three people in 1999 and 2 001, and pushed to have it included in her autobiography. Dickinson also supported her opposition with excerpts from Singer’s deposition. During his deposition, Singer testified that, on November 18, 2014, he learned about Dickinson’s
Entertainment To night interview from Cosby’s publicist, David Brokaw. Singer and Brokaw proceeded to have multiple phone calls that afternoon. Cosby participated in at least one of those calls. Singer also believed Cosby’s transactional lawyer may have
been on one of t he calls with Brokaw and Cosby. Singer said he
did not have discretion to independently respond to media inquiries regarding Dickinson’s allegations

. Singer explained that he intended the November 20 p ress

r elease to refer only to Traitz. However, he c onceded that Dickinson would have been an “earlier example” of someone “coming out of the woodwork” to accuse Cosby of sexual assault. Singer also said he intended to refer to Dickinson in the
November 21 press release when he wrote, “The new never

before

- heard claims from women who have come forward in the past two weeks with unsubstantiated fantastical stories about things they say occurred 30, 40, or even 50 year s ago have
escalated far past the point of absurdity.” Singer said his representation of C osby ended in 2015,
sometime after he received Dickinson’s February 2015 request for
retraction.12 Trial Court Order The trial court heard and decided Singer’s and Cosby’s anti

SLAPP motions simultaneously. The court granted Singer’s
motion in its entir ety on the basis that Dickinson could not prove he acted with malice, which was a necessary element of her claims. The court explained: “The only way Plaintiff could prove by clear and convincing evidence that Singer and/or Cosby acted with the requisit e malice against Plaintiff (as a public figure) would be to show that Singer knew or acted in reckless disregard of whether the rape actually occurred, because the gist of his defamatory statements is that Plaintiff is lying about a rape that never happene d. Because Singer was not present during the alleged rape, the only way he could know would be that Cosby communicated to Singer that he did in fact rape Dickinson as she claims. However, evidence of this communication from Cosby to Singer comes within t he attorney

- client privilege (and only Cosby, as client, can waive the privilege), and any documents reflecting Singer’s conclusions about Cosby ’ s innocence come within the absolute attorney work product doctrine protecting writings reflecting ‘an attorney ’ s impression, conclusions, opinions or legal research or theories,’ which writings are ‘ not discoverable under any
circumstances .’ CCP § 2018.030 ( B old emphasis added). Thus, Dickinson cannot obtain this information in discovery . . . .”
The court the n turned to Cosby’s anti

- SLAPP motion, which it granted i n part and denied in part. The court began by noting the limited scope of the motion: “By way of this motion, Cosby is only challenging whether the November 20, 2014 and November 21, 2014 press sta tements are actionable, as the Court of Appeal has already directed this trial court that Cosby’s anti

-13

SLAPP motion as to the November 18 and November 19, 2014
Press Statements are to be denied.” The court determined that all the allegedly defamatory

stat ements in the November 20 and 21 press releases were protected acts in furtherance of Cosby’s constitutional right of free speech. It then considered the second prong of the anti

SLAPP analysis: whether Dickinson had established a probability of prevaili ng on the merits of her claims. The court rejected Cosby’s argument that the press releases were not “of and concerning” Dickinson. The court explained that
the statements were “ issued as a series of Press Statements
within 1

– 2 days of the November 18 a nd November 19, 2014 Press Statements which specifically referred to Plaintiff by name. There is a clear implication that Singer is referring to persons such as Dickinson who, only 1

– 2 days prior, he stated was lying about Cosby raping her.”
The court th en considered whether the press releases

con tained provably false factual assertions

. With respect to the November 20 press release, the court found all the statements

were nonactionable opinion , with one exception: “ Ms. Traitz is the latest example of p eople coming out of the woodwork with unsubstantiated or fabricated stories about my client .” Similarly, the court found all but one statement in the November 21 press release to be nonactionable opinion: “The

new, never

- before

- heard claims from women wh o have come forward in the past two weeks with unsubstantiated, fantastical stories about things they say occurred 30, 40, or even 50 years ago have escalated far past the point of absurdity. ”14 Finally, the court rejected Cosby’s argument that Dickinson could not establish direct or vicarious liability with respect to any of her claims. The court explained: “[T]he evidence before the Court is that Plaintiff has demonstrated a probability that she can prove that Cosby ratified two statements made by Sin ger on behalf of Cosby as his agent because Cosby approved the November 18, 2014 Press Statement before it was publicly issued by Singer. As discussed above re: Defendant Singer’s anti

- SLAPP motion, Singer stated in his
declaration that he ran the Novembe r 18, 2014 Press Release by Cosby and his attorney for approval before publishing that Press
Statement. . . .

“ The Court also notes that this is clear and convincing evidence that Cosby acted with malice in approving the November 18 (and, by implication, November 19), 2014 Press Statements issued by Singer. The fact that the Court found that Plaintiff has not established a probability that she can prove by clear and convincing evidence that Singer acted with malice does not automatically let Cosby off the hook. Because Cosby is one of only two people who was involved in the incident, he necessarily knows whether the statement that Dickinson lied about the rape because the rape never happened is true or false. Dickinson has
submitted evidence that the rap e occurred. . . .

“ While there is no evidence that Singer asked Cosby to specifically approve the November 20 and 21, 2014 Press Statements, as with the November 19, 2014, Cosby may be found by the jury to have implicitly approved any Press Statements
whe reby Singer denied on Cosby’s behalf Plaintiff’s accusation that Cosby had raped her. This would constitute Cosby’s ratification of the November 20 and 21, 2014 Press Statements15

which furthered this position taken by Cosby.” Cosby timely appealed.

DISCU SSION
I. We Decline to Consider Cosby’s Arguments Related
to the November 18 Demand Letter and November 19
Press Release Dickinson urges us to disregard Cosby’s arguments that she failed to show a probability of prevailing on her claims premised on the N ovember 18 demand letter and November 19 press release. She contends this court determined that issue in
her favor in Dickinson I , and Cosby is improperly seeking a second bite at the apple by challenging those claims in his latest
anti

- SLAPP motion. We agree. “ ‘The doctrine of “law of the case” deals with the effect of
the first appellate decision on the subsequent retrial or appeal : The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establis hes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.’ ” ( Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491.) The doctrine “precludes a party from obtaining appellate review of the same issue more than once in a single action.” ( Katz v. Los Gatos

– Saratoga Joint Union High School Dist. (2004) 117 Cal.App.4th 47, 62; see Searle v. Allstate Life Ins

. Co. (1985) 38 Cal.3d 425, 434 [“The rule of ‘law of the case’ generally precludes multiple appellate review of the same issue in a single case.”].) “The law of the case may apply even where the appeal is from a decision short of a full trial, including a judgment on a demurrer, a
nonsuit order or denial of an anti

- SLAPP motion.” ( Hot els Nevada, LLC v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th16

336, 356.)
In Dickinson I

, we held that Dickinson’s defamation claims premised on the November 18 demand letter and November 19 press release are not barred under the anti

- SLAPP statute. (See Dickinson I, supra, 17 Cal.App.5th at p. 660.) That determination became law of the case, which, in effect, precludes Cosby from relitigating the issue. As a result, we will not consider Cosby’s arguments related to those claims, and will
instead limit our review to his arguments related to the November 20 and 21 press releases, which were not at issue in
Dickinson I

. Cosby maintains his arguments related to the November 18 demand letter and November 19 press release are proper because they are pr emised on new allegations in the FAC. Specifically, he

argues the FAC alleges he is both directly and vicariously liable for such statements, whereas the original complaint asserted only that he is vicariously liable for them. We do not read the origina l complaint so narrowly.
It repeatedly alleged that Cosby “published” and “issued” the allegedly defamatory statements through his attorney

, which

were then republished worldwide as Cosby “foresaw and intended.” The clear implication of such allegations is that Cosby personally took a responsible part in the publication of the statements, for which he would be directly liable. ( Overstock.com, Inc. v. Gradient Analytics, Inc. (2007)
151 Cal.App.4th 688, 712 [“One who takes a responsible part in a publicat ion of defamatory material may be held liable for the publication.”].) The original complaint further alleged that Cosby ratified the allegedly defamatory statements, which would also potentially expose him to direct liability. (See Rest .3d Ag ency ,17

§ 7.0 3 [“A principal is subject to direct liability to a third party harmed by an agent’s conduct when . . . the principal ratifies the agent’s conduct . . . .”].) Thus, we reject Cosby’s contention that
the FAC’s claims related to the November 18 demand lette r and November 19 press release are meaningfully different from those in the original complaint. Cosby also perfunctorily argues that we should reconsider his challenge to Dickinson’s claims now that Singer has been “absolved” of liability. Once again, w e are not persuaded. Cosby was free to argue in his first anti

- SLAPP motion that Dickinson could not establish Singer’s liability. In fact, he did make that argument, but ultimately abandoned it in an apparent bid to avoid discovery on the malice issue. Cosby chose not to pursue
that argument in his first anti

- SLAPP motion. He must live with
that choice now.
II. The Trial Court Properly Denied Cosby’s Anti

SLAPP Motion
A. The Anti

- SLAPP Statute The Legislature enacted the anti

- SLAPP statute to ad dress the societal ills caused by meritless lawsuits filed to chill the exercise of First Amendment rights. (§ 425.16, subd. (a).) The statute accomplishes this end by providing a special procedure for striking meritless, chilling claims at an ear ly stag e of litigation. (See § 425.16, subd. (b)(1); Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055

– 1056 .)
The anti

- SLAPP statute establishes a two

- step procedure to determine whether a claim should be stricken. In the first step,
the court decides whether the m ovant has made a threshold showing that a challenged claim arises from statutorily

- defined18

protected activity. 4 ( Rusheen v. Cohen, supra , 37 Cal.4th at

p. 1056.) Here, the parties agree, as do we, that Dickinson’s defamation claims arise from protected a ctivities. We focus, therefore, on the second prong of the analysis: whether Dickinson has shown of probability of prevailing on her claims. ( Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) To show a probability of prevailing, the opposing party

must demonstrate the claim is legally sufficient and supported by a sufficient prima facie showing of evidence to sustain a favorable judgment if the evidence it has submitted is credited. ( Zamos v.
Stroud (2004) 32 Cal.4th 958, 965.) “In deciding the questi on of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing
evid ence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim. [Citation.]’ [Citations.]” ( Taus v. Loftus (2007) 40 Cal.4th 683,

4 The anti

- SLAPP statute specifies four categories of protected activity: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceed ing, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (§ 425.16, subd. (e).)19

713

– 714.) We accept as true the evidence favorable to the plaintiff. Further, a plaintiff must establish only that the challenged claims have minimal merit to defeat an anti

- SLAPP motion. ( Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)
We review the denial of an anti

- SLAPP motion de novo. ( Park v. Board of Trustees of California State University (2017)

2 Cal.5th 1057, 1067.)
B. Defamation “Defamation is the intentional publication of a statement of fact that is false, unprivileged, a nd has a natural tendency to injure or that causes special damage.” ( Grenier v. Taylor (2015) 234 Cal.App.4th 471, 486.) If the person defamed is a public figure, like Dickinson, she must show, by clear and convincing evidence, that the defamatory statem ent was made with actual
malice

— that is, with knowledge that it was false or with reckless disregard of whether it was false. ( Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 256; New York Times Co. v.
Sullivan (1964) 376 U.S. 254, 285

– 286 ( Sullivan ) .) In evaluating whether a plaintiff has made a prima facie showing of facts sufficient to sustain a favorable judgment, “we bear in mind the higher clear and convincing standard of proof.” ( Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 358. )
C

. There I s Sufficient Evidence Showing Cosby
I s Directly Liable for the Allegedly Defamatory
Statements Contained I n the November 20 and 21
Press Releases Cosby contends Dickinson failed to show a probability of prevailing on her claims because she can not prove he is directly liable for any of the allegedly defamatory statements contained in20

the press releases. He argues there is no evidence that he played a responsible part in their publication, nor could Dickinson
obtain such evidence because it woul d be protected by the attorney

- client privilege. We disagree.

1. There I s Sufficient Evidence Showing Cosby Approved or Authorized the Statements “One who takes a responsible part in a publication of defamatory material may be held liable for the publicat ion.” ( Overstock.com, Inc. v. Gradient Analytics, Inc. , supra , 151 Cal.App.4th at p. 712.) Here, there is sufficient evidence that Cosby took a responsible part in publishing each of the allegedly defamatory statements by approving or authorizing them pr ior to publication. Singer stated in his declaration that he has been practicing law for 40 years, and it is his general practice to discuss the contents of all correspondences and press statements with a client and receive approval before transmitting t hem to the intended recipients. He further testified at deposition that he did not have discretion to independently respond to media inquiries regarding Dickinson’s disclosure. From this evidence , the fact finder could reasonably infer that Singer sought and received Cosby’s approval or authorization of the press releases before they were issued. (See Evid. Code, § 1105 [“evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom”].) Further supporting such an inference, the evidence shows Cosby continued to employ Singer and declined to issue retractions after Singer published the various statements, which Cosby knew to contain falsehoods. A trier of fact could reasonably find such behavior inconsistent with a claim that Singer was acting without Cosby’s approval or21

authorization. Although far from overwhelming, this evidence is sufficient to meet the minimal burden of proof required to survive
an anti

- SLAPP statute. Cosby contends Singer ’s testimony regarding his general practices is insufficient to prove he approved or authorized the allegedly defamatory statements

, because there is no evidence
that Singer “applied those practices in the course of representing [Cosby] or in making the Si nger Statements.” Evidence Code section 1105, however, provides that “evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom.” Thus, the fact finder could properly infer that Singer acted in conformance with his general practices when issuing these specific press releases. If so, Singer would have sought and received Cosby’s approval or authorization before issuing the various statements. Cosby does not acknowledge Evidence Code section 1105 in his briefing , let alone explain why it does not apply to this case. Cosby additionally asserts that Dickinson cannot rely on evidence of Singer’s general practices because it would require
the trier of fact to draw an inference about the content s of privileged conversations. 5 Assuming for the sake of argument that such an inference is improper, we are not convinced it would be necessary in this case. Singer testified that, around the time he issued the press releases, he had at least one conver sation with Cosby in the presence of a third party, David Brokaw. If Cosby approved or otherwise authorized Singer’s statements during that conversation

— which would have been reasonable given Brokaw was Cosby’s publicist and first alerted Singer to

5 Cosby does not contend that Singer’s declaration itself contains privileged information

.22

Dickin son’s disclosure

— the communication may not be privileged. 6 It is possible, therefore, that Dickinson could prove Cosby played a responsible part in the publication of the allegedly defamatory statements without having to prove

— through either direct or ind irect evidence

— the contents of a privileged communication. For similar reasons, we find no merit to Cosby’s brief suggestion that Dickinson’s use of evidence of Singer’s general practices is improper because it would require Cosby to waive the attorney

- client privilege to defend himself. Cosby overlooks that he could potentially defend himself by producing evidence of non

privileged communications in which he explicitly disapproved the
statements or otherwise forb ade Singer from issuing them. Cosby co uld also potentially produce evidence that Singer never sought his approval or authorization, and acted entirely on his
own. The attorney

- client privilege protects confidential
communications between attorneys and their clients. ( Roberts v. City of Palmd ale (1993) 5 Cal.4th 363, 371; see also Evid. Code, § 954.) Thus, revealing that a particular communication did not occur would not necessarily result in a waiver of the privilege.

6 Cosby does not contest that Brok aw’s presence would break the attorney

- client privilege. Instead, he contends that Singer’s declaration conclusively establishes that Brokaw was not present during any of the discussions between Cosby and Singer regarding Dickinson’s allegations. Singer’ s declaration, however, states only that he discussed the allegations “directly with Mr. Cosby and with his transactional attorney . . . .” It does not specify whether other people , such as Brokaw, were present during those conversations.23 2. There I s Sufficient Evidence Showing Cosby
Ratified the Allegedly Defamatory Statements Even if Dickinson could not prove Cosby approved or
authorized the press release s before Singer issu ed them, she produced sufficient evidence showing Cosby ratified the statements after the fact. “Ratification is the voluntary ele ction by a person to adopt in some manner as his own an act which was purportedly done on his behalf by another person, the effect of which, as to some or all persons, is to treat the act as if originally authorized by him. [Citations.] A purported agent ’s act may be adopted expressly or it may be adopted by implication based on conduct of the purported principal from which an intention to consent to or adopt the act may be fairly inferred, including conduct which is ‘inconsistent with any reasonable inte ntion on his part, other than that he intended approving and adopting it.’ ” ( Rakestraw v. Rodrigues (1972) 8 Cal.3d 67, 73.) “[T]he effect of a ratification is that the authority which is given to the purported agent relates back to the time when he per formed the act.” ( Ibid .;

see C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1111 [“the ratification relates back to the time the tortious act occurred”]; Rest .3d Agency

, § 4.02 [“ratification retroactively
creates the effects of actual author ity”].) A principal’s failure to discharge an agent after learning of his wrongful acts may be evidence of ratification. ( Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 810; Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 852.) Here, Dickinson presented evidence that Cosby drugged and raped her in 1982. Assuming this evidence is true

— as we must for purposes of an anti

- SLAPP motion

— it follows that Cosby knew the press releases, which implied Dickinson was24

lying, contained falsehoods. Given Singer was Cosby’s attorney and represented himself as such in the press releases, it is reasonable to infer that Cosby also expected the statements contained therein would be attributed to him. Nonetheless, the evidence shows Cosby di d not immediately terminate the agency relationship with Singer after he issued the press releases ; nor did Cosby issue a retraction or clarification.
A fact finder could reasonably conclude such actions were inconsistent with any reasonable intention on Cosby’s part, other
than to approve and adopt Singer’s statements as his own. If so, the effect is as if Cosby had approved or authorized the statements at the time Singer issued them. Cosby would therefore be responsible for their publication and subjec t to direct liability for defamation. (See Rest .3d Agency

, § 7.03 [“A principal is subject to direct liability to a third party harmed by an agent’s
conduct when

. . . the principal ratifies the agent’s
conduct

. . . .”].) Cosby suggests the legal princip le of ratification has no application to this case because it applies only if there is no pre

existing agency relationship. He is wrong. Although it is true that ratification may result in the creation of an agency relationship where none previously exis ted, it also works to authorize an existing agent’s otherwise unauthorized act. ( Rakestraw v. Rodrigues, supra , 8 Cal.3d at p. 73.) We are also not persuaded by Cosby’s contention that post

publication conduct can never be sufficient to show a defendant played a responsible part in the publication of defamatory material. In support, Cosby relies on a federal case in which a district court noted the lack of authority to support the plaintiffs’ argument “that a publisher may be liable for defamation becaus e25

it fails to retract a statement upon which grave doubt is cast after publication.” ( D.A.R.E

. America v. Rolling Stone Magazine (C.D.Cal. 2000) 101 F.Supp.2d 1270, 1287.) The lack of authority for such a proposition is irrelevant given Cosby is Singer’s principal, not his publisher, and the evidence shows Cosby knew the statements were false at the time they were published. Cosby’s reliance on Sullivan , supra, 376 U.S. 254, is also misplaced. In that case, the United States Supreme Court held a

news paper publisher ’s failure to retract an article upon demand
was not sufficient to show the publisher acted with malice. ( Id

. at p. 286.) Here, Dickinson is not relying on evidence of Cosby’s failure to retract to show he acted with malice. Rather, she i s using it to show Cosby ratified the statements and is therefore responsible for their publication

. Equally misguided is Cosby’s argument that Dickinson failed to produce evidence of “confirmatory conduct,” which he

s uggests is necessary to prove ratific ation. Cosby overlooks that a principal may ratify an agent’s act through either

“ ‘ confirmatory conduct ’ ” or “ ‘ conduct inconsistent with disapproval. ’ ” ( Gates v. Bank of America (1953) 120 Cal.App.2d 571, 576.) As discussed above, a fact finder coul d reasonably find Cosby’s retention of Singer as his attorney and refusal to issue retractions are inconsistent with disapproval of the allegedly defamatory statements. 7

7 Because we f

ind Dickinson show ed a probability of prevailing under a direct liability theory, we need not consider whether she might also prevail under a vicarious liability theory.26 D. Dickinson Produced Sufficient Evidence Showing
the November 20 and 21 Press R eleases Were of and Concerning Her Cosby maintains Dickinson cannot prevail on her claims premised on the November 20 and 21 press releases because neither press release was “of and concerning her.” We disagree.

1. Applicable Law An otherwise defamatory s tatement is actionable only if it is “of and concerning” the plaintiff. “The ‘of and concerning’ or specific reference requirement limits the right of action for injurious falsehood, granting it to those who are the direct object of criticism and denying it to those who merely complain of nonspecific statements that they believe cause them some hurt.” ( Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1044 ( Blatty ) .) To satisfy the requirement, the plaintiff must show the statement expressly mentions h er or refers to her by reasonable implication. ( Id . at p. 1046.) The plaintiff must also show the statement was understood by at least one third person to have concerned her. ( Bartholomew v. YouTube, LLC (2017) 17 Cal.App.5th 1217, 1231; see Neary v. Re gents of University of California (1986) 185 Cal.App.3d 1136, 1147 [“For publication to occur the defamatory matter must be communicated to a third party who understands the defamatory meaning and its applicability to the plaintiff.”].) A statement may be actionable if it refers to a group to which the plaintiff belongs, but only if the group is sufficiently small and its members easily ascertainable. ( Blatty, supra,

42 Cal.3d at p. 1046.) Where the statement refers to a large

group

— typically any group n umbering more than 25 members

— courts consistently hold that plaintiffs cannot show the27

statements were of and concerning them. ( Ibid .)
To determine whether the allegedly defamatory statements

are of and concerning Dickinson , we must consider the totalit y of the circumstances. (See D.A.R.E

. America v. Rolling Stone Magazine

, supra , 101 F.Supp.2d at p. 1290 [applying California law].) This requires examination of the “ nature and full content
of the communication and

. . . the knowledge and understanding of the audience to whom the publication was directed. ” ( Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 261 ( Baker ) .)
2. Application
Dickinson’s claim s premised on the November 20 and 21 press release s are considerably weaker than her claims pr emised on the demand letter and November 19 press release, which
referred to her directl y

. In fact, it is not clear why she chose to
add the claim s to her FAC , especially given the relative strength of her existing claims

. Nonetheless , and a lthough far f rom a certainty

, we think a reasonable trier of fact c ould conclude the allegedly defamatory statement s contained in each refers to
Dickinson by reasonable implication

. The first allegedly defamatory statement

— “Ms. Traitz is the latest example of people coming out of the woodwork with fabricated or unsubstantiated stories about my client”

— appears in the N ovember 20 press release . Singer issued the press
release in the immediate wake of numerous women publicly accusing Cosby of sexual misconduct , which wa s a topic of considerable public interest . The press release itself was concerned primarily with discrediting one such woman’s recent allegation that Cosby offered her drugs and made sexual advances on her decades ago. In this context, it is reasonable t o read the reference to “stories about my client” to refer specifically28

to accusations of Cosby’s sexual misconduct. Further, the phrase “coming out of the woodwork” suggests the accusers had not previously made their disclosures public. Thus, the statem ent could be reasonably interpreted as referring specifically to the women who recently publicly accused Cosby of sexual
misconduct , and implying that their accusations were false. Dickinson undoubtedly fits that description , a point even Singer a cknowle dge d during his deposition

. J ust two days before Singer issued the November 20 press release

, she went on national television to accuse Cosby of drugging and raping her. The next day, Singer issued the November 19 press release,
which explicitly called D ickinson’s “story” that Cosby raped her a
“fabricated lie. ” Given th is timeline of events, the significant

pu blicity surrounding Dickinson’s allegations and Cosby’s

response , and the similarities in language with the November 19 press release, we think a reasonable fact finder could conclude that Dickinson was one of the earlier “example[s] of people coming out of the woodwork” with “fabricated” “stories about [Cosby]” to which the November 20 statement implicitly referred. For the same reasons, we think a reasonable trier of fact
could conclude the allegedly defamatory statement in the November 21 press release

— “The new, never

- before

- heard claims from women who have come forward in the past two weeks with unsubstantiated, fantastical stories about things they say occurred 30, 40, or even 50 years ago have escalated far past the point of absurdity”

— is also of and concerning Dickinson. In deed

, the statement includes additional details that further delineate the group and point even more directly to Dickins on.29 We acknowledge that the record does not disclose the precise number of women who had recently accused Cosby of
sexual misconduct. 8 Still, we do not think the group is necessarily so large, or its boundaries so amorphous, that its

m embers could not b e readily ascertained. This is particularly true given the public nature of the women’s disclosures and the significant attention they received. The bar to survive an anti

SLAPP motion is low, and we think Dickinson has met it here. We are not persuade d by Cosby’s contention that Dickinson failed to produce any evidence showing a third party actually
understood the allegedly defamatory statement s to refer to her. In support of his argument, Cosby relies on a Ninth Circuit case applying California law, in which the plaintiffs alleged the defendant made defamatory statements referring to their business. ( SDV/ACCI, Inc. v. AT&T Corp. (9th Cir. 2008) 522 F.3d 955.) The Ninth Circuit affirmed summary judgment against the plaintiffs on the basis that they f ailed to produce evidence showing a third party actually understood the statements to refer to them as individuals. The court explained that under California law, “[t]o proceed with their suit as individuals, the [plaintiffs] must show not only that the

s tatement could reasonably be understood as referring to them as

8 Dickinson represents that only eight women fit the description of persons “who ha ve come forward in the past two weeks with unsubstantiated, fantastical s tories about things they say occurred 30, 40, or even 50 years ago . . . .” The only support she provides for that number, however, is an unsourced statement in one of her trial brie fs, which is not evidence. (See In re Zeth S. (2003) 31 Cal.4th 396, 413

– 414, fn. 11 [“It is axiomatic that the unsworn statements of counsel are not evidence.”].)30

individuals, but also that some third party understood the statement in this way.” ( Id . at p. 959, citing De Witt v. Wright (1881) 57 Cal. 576, 578 [“it is essential not only that it should
h ave been written concerning the plaintiff, but also that it was so understood by at least some one third person”].) Cosby contends that Dickinson likewise failed to produce any evidence showing a third party actually understood the allegedly defamatory st atements to refer to her. He overlooks, however, that such evidence need not be direct. Indeed, the
S DV/ACCI court specifically noted it was not “impugn[ing] the common law rule that circumstantial evidence may be used to prove that defamatory material w as published to a third party who reasonably understood it to refer to the plaintiffs,” and a plaintiff need not present testimony from a third party regarding what that person heard and understood. ( S DV/ACCI, supra

, 522
F.3d at p. 961.) Here, the allege dly defamatory statements referred to Dickinson by reasonable implication , the press releases in which they appeared were widely disseminated, the topic of Cosby’s alleged sexual misconduct was of considerable public interest, and Dickinson, who is herself a well

- known public figure, had just days earlier accused Cosby of sexual misconduct during a nationally televised interview. For purposes of an anti

SLAPP motion, we think this is sufficient circumstantial evidence to show at least one third party heard the allegedly defamatory statements and actually understood them to refer to Dickinson.
E. Dickinson Produced Sufficient Evidence Showing
the November 20 and 21 Press Releases Contain
Actionable Assertions of Fact Cosby maintains Dickinson cannot prev ail on her claims premised on the November 20 and 21 press releases because31

neither press release contains an actionable assertion of fact. Instead, Cosby argues, they merely express Singer’s opinion, for which he adequately disclosed all the facts upon w hich he relied. We disagree.

1. Applicable Law “ ‘The sine qua non of recovery for defamation . . . is the existence of falsehood.’ [Citation.] Because the statement must contain a provable falsehood, courts distinguish between
statements of fact and s tatements of opinion for purposes
of defamation liability. Although statements of fact may be actionable as libel, statements of opinion are constitutionally protected. [Citation.]” ( McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 112 ( McG arry ).) Statements of opinion, however, do not enjoy blanket protection. ( Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 384

– 385 ( Franklin ).) Rather, “a statement that implies a false assertion of fact, even if couched as an opinion, can be
actionable.” ( McGarry, supra, 154 Cal.App.4th at p. 112, relying

on Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 18

– 19 ( Milkovich ) .) The dispositive question is not whether a statement is fact or opinion, but “whether a reasonable fact finder co uld conclude the published statement declares or implies a provably false assertion of fact.” ( Franklin

, supra , at p. 385; see Summit Bank v. Rogers (2 012) 206 Cal.App.4th 669, 696.) To make this determination, we apply a totality of the
circumstances t est. First, we examine the language of the statement itself, to determine whether the words could be understood in a defamatory sense. Second, we examine the context in which the statement was made. ( Franklin

, supra, 116 Cal.App.4th at p. 385.)32 In consi dering the language of the statement, we look at whether the purported opinion discloses the facts on which it is based and does not imply there are other, unstated facts which support the opinion. “Even if the speaker states the facts upon
which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact.” ( Milkovich

, supra, 497 U.S. at pp. 18

– 19; see Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, 1471 [“ An opinion
is actionable if it discloses all the statements of fact on which the opinion is based and those statements are false”].) We also consider whether the statement was cautiously phrased in terms of the author’s impres sion. ( Baker, supra, 42 Cal.3d at pp. 260

– 261.)
In considering the context of the statement, we look at the audience to whom the statement was directed ( Baker , supra , 42 Cal.3d at p. 261), the forum in which the statement was made (see e.g. Summit Bank v. Rogers, supra, 206 Cal.App.4th at

p. 699 ) and the author of the statement (see

, e.g. , Franklin

, supra, 116 Cal.App.4th at p. 389).
2. Application After considering the totality of the circumstances, we
think a reasonable fact finder could conclude the al legedly defamatory statements in the November 20 and 21 press releases imply provably false assertions of fact. The clear implication of
both statements , which Cosby does not directly contest, is that all
the wom e n who recently accused him of sexual misco nduct were lying. Neither statement is phrased cautiously in terms of opinion. They do not include language such as, “I think,” or “I believe.” Rather, both statements are expressed in unconditional,33

matter

- of fact terms. They express factual assertion s regarding
the veracity of the accusations , not opinion.
The context in which the statements were made further supports our conclusion that a reasonable listener would understand the statements as assertions of fact, rather than opinion. As we explained in Dickinson I

, “ [t]he rape allegations against Cosby were a subject of national attention and much public speculation. It would perhaps be unactionable opinion if an unrelated individual, with no actual knowledge of the rape, chatting in a public forum, were to say, ‘Dickinson lied about the rape; after all, she told a different story in her book.’ That may be unactionable opinion because it is based on disclosed facts and the speaker would not be presumed to be basing the opinion on anything else. ” ( D ickinson I , supra , 17 Cal.App.5th at p. 689 .) However, “[w] hen a man is publicly accused of raping a woman and responds with a public statement claiming the accusation itself is false, it is reasonable that a member of the public hearing
the statement wou ld not think the denial means, ‘I’m neither affirming nor denying that I raped her, but look at all this evidence challenging her credibility.’ That the speaker making the denial is himself the accused rapist strongly implies that the
denial includes a de nial of the rape itself. Here, the speaker was the accused’s attorney, speaking with presumed agency. We see no reason the result should be different.” ( Id

. at pp

. 689

– 690, fn. 17 .)
T he same analysis applies equally to the allegedly defamatory stateme nts at issue in this appeal. Indeed, given the circumstances, we think a reasonable listener would understand
the November 20 and 21 press releases as Cosby’s implicit
denials of the accusations, rather than the opinions of his34

attorney. At the very leas t, they’re reasonably susceptible t o that interpretation, which is sufficient to survive an anti

- SLAPP
motion. Even if we were to accept Cosby’s premise that a reasonable listener would understand the statements as Singer’s opinion, we would nonetheless find them actionable. Cosby
insists the statements are non actionable because both press releases set forth a sufficient factual basis for any opinions expressed therein. We can dispense of this argument summarily as it relates to the November 20 press re lease, which provides no factual basis, whatsoever, for the statement referring to
Dickinson. 9 With respect to the November 21 press release, Cosby asserts it discloses three facts underlying Singer’s opinion: (1) the alleged acts occurred many years ea rlier; (2) it is “illogical that so many people would have said nothing, done nothing, and made no reports to law enforcement or asserted civil claims if they thought they had been assaulted ; ” and (3) “it makes no
sense that not one of these new wom e n who just came forward for the first time now ever asserted a legal claim back at the time they allege they had been sexually assaulted.” There are three reasons why Singer’s disclosure is insufficient. First, because Singer represented himself as Cosby’s

at torney , a listener might reasonably assume he previously discussed the allegations and responses with Cosby, who would

9 Cosby suggests it is sufficient that Singer disclosed in the press release the factual b asis for his statement implying Tra i tz lied about Cosby. Whether Trai t z lied, however, has no bearing on whether Dickinson did so. That Singer may have disclosed the factual basis for his opinion of Tra i tz, therefore, is irrelevant.35

know for certain whether they were true. Therefore, there is a strong implication that Singer’s opinion is based on an
undisclosed and p rovably false fact : Cosby did not rape
Dickinson. Second, t he press release does not disclose all the facts on which Singer purportedly based his opinion. Singer’s declaration admits that he reached his opinion about Dickinson based on
several other fa cts, including his prior experience s with her, his research into her credibility, and statements she made in her autobiography. None of these facts are contained in the press release, making it impossible for the readers to judge for
themselves whether th e facts support the opinion.
Third , Dickinson’s evidence shows that one of the purported facts

— that she “said nothing [and did] nothing”

— is
itself false. Dickinson stated in her declaration that she previously disclosed to several friends that Cosby rap ed her and she pressed to have the incident included in her autobiography. An opinion based on a provably false fact is itself potentially
actionable. 10

10 We are aware t hat a federal court found, in connection with a lawsuit brought by another plaintiff, that the November 21 press release adequately disclosed the factual basis for Singer’s opinion. (See Hill v. Cosby (3d Cir. 2016) 665 Fed.Appx. 169, 175

– 176.) We are no t bound by the intermediate federal court’s decision. ( People v. Williams (1997) 16 Cal.4th 153, 190.) Nor

are we persuaded by it. A s we discussed at length in Dickinson I

, the federal court opinion does “not give sufficient weight to the fact that Sing er was making the statements as Cosby’s agent.” ( Dickinson I

, supra , 17 Cal.App.5th at p p. 689

– 690, fn. 17 .) Nor does it explicitly address whether the press release implied undisclosed facts, whether it disclosed all the facts upon which the opinion was based , or whether the stated facts were true.36 W e reject Cosby’s contention that the statements are not actionable because they represent zealous advo cacy by his attorney, who had an ethical duty to voice a defense of his client. Cosby contends that in a “free and open society, our justice system should and does provide wide latitude for defense attorneys to make such statements.” However, as discusse d above, there is evidence that Cosby personally approved or authorized the statements before Singer issued them. Cosby had no ethical obligation to issue press releases containing known falsehoods, nor does it benefit our free and open society for him to
do so.
DISPOSITION
The order is affirmed

. Dickinson is awarded her costs on appeal.
CERTIFIED FOR PUBLICATION

BIGELOW, P. J.

W E CONCUR :

GRIMES, J.

STRATTON, J.